Irish Shell Ltd v Dan Ryan Ltd & Esso (Irl)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MURPHY
• Judgment Date: 19 July 1985
• Neutral Citation: 1985 WJSC-HC 2273
• Date: 19 July 1985
• Court: High Court

1985 WJSC-HC 2273

THE HIGH COURT

584OP/1985

IRISH SHELL LTD v. DAN RYAN LTD & ESSO (IRL)

IRISH SHELL LIMITED

/ PLAINTIFF

and

DAN RYAN LIMITED AND ESSO (IRELAND) PUBLIC LIABILITYCOMPANY

/ DEFENDANT

Citations:

CONTINENTAL OIL V MOYNIHAN 111 ILTR 5

ESSO V FOGARTY 1969 IR 531

ESSO V HARPER 1968 AC 269

IRISH SHELL BP LTD V RYAN 1966 IR 75

IRISH SHELL V BURRELL UNREP MCWILLIAN 07.06.81 1981/10/1755

Synopsis:

INJUNCTION

Interlocutory

Fair question - Balance of convenience - Standard test - Defendant retailer of petrol and motor oils - Solus agreement with plaintiff oil company - Defendant entering into contract for sale of retail premises to rival oil company - Solus agreement unexpired - Injunction granted to plaintiff subject to undertaking about damages - (1985 No. 5840P - Murphy J. - 19/7/85).

|Irish Shell v. Dan Ryan Ltd.|

1 BEFORE HS HONOUR MR. JUSTICE MURPHYON FRIDAY 19TH JULY, 1985

APPEARANCES

MAURICE GAFFNEY S.C.

M. DURACK B.L.

(FOR PLAINTIFF)

(Instrd. By

McKeever & Son,

5 Foster Place, Dublin 2.)

P. GILLIGAN S.C

(FOR 1ST. NAMED DEFENDANT)

(DAN RYAN LTD.)

D. SELIGMAN B.L.

(Instrd. By

H.J. O'Hagan Ward & Co.,

94 Lr. Baggot Street,

Dublin 2.)

K. FEENEY B.L.

(FOR 2ND NAMED DEFENDANT)

(ESSO (IRELAND) PLC)

(Instrd, by

T.P. Robinson

& Co. Solicitors)

2 JUDGE: This matter came before me in the course of the Chancery List on Monday last, and having regard to the importance of the matter to the parties, I felt it appropriate to reserve my judgment until today; but, having regard to the urgency of the matter, I felt unable to postpone the matter until I would have an opportunity of delivering a written judgment.

3 I am conscious of the fact that important applications of this nature are taken, as was this case, as one of some 80 cases in the day, and I do feel one has to exercise a measure of care in ensuring that the appropriate principles are given adequate consideration.

4 The application is for an injunction restraining the defendants from taking any further steps towards the completion of an agreement for sale of certain premises at Punches Cross, Limerick, to Esso (Ireland) PLC. The plaintiffs, Shell, entered into an agreement with the first defendant Dan Ryan Ltd. (Ryans) on 2 7.5.81. That agreement related to the user of the premises in Punches Cross and was expressed to be for a period of five years from 1.5.81. The agreement to which I shall refer as the Solus agreement does not contain any term prohibiting Ryans from selling or alienating the premises, nor does it require them to purchase any minimum supplies of petroleum products from Shell Ltd. What it does require is that first Ryans should purchase only Shell brands of motor fuel. Secondly that it should purchase automotive lubricant marketed by Shell; thirdly that Ryans should exhibit on the site Shell signs, fourthly that it should be decorated in Shell colours if so required by Shell. Presumably shell were satisfied that the cumulative effect of these contractualobligations would result in Ryans using the site as a filling station carrying on business to the best advantage, and then of necessity retailing Shell products therein. Clause 8 of the Solus agreement provides as follows: "the buyer shall not ................ shall not apply."

5 By successfully operating that clause Ryans might relieve themselves of the burden imposed upon them by the agreement. It is however clear that it is not the intention of Ryans to invoke that clause or to transfer the benefit of the Solus agreement to Esso. This is expressly stated in the affidavit sworn by Mr. Michael Ryan on behalf of Ryans, so there is therefore no question of Ryans being relieved from their contractual obligations by virtue of clause 8. It appears to me these obligations will persist until the expiration of the agreement on 1st May nextyear.

6 It is contended by Shell that an outright sale of the site to Esso or any other party would make it impossible for Ryans to perform their contractual obligations under the Solus agreement, and that accordingly the proposed disposition would constitute a breach, indeed a repudiation, of the Solus agreement. Having regard to the fact that this is an interlocutory application in which it would be impossible to decide disputed questions of fact and impracticable to resolve contentious questions of law, it is sufficient at this stage for me to say that I accept that this is a fairly arguable contention and that the plaintiffs have a statable case in that...